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Newt Gingrich as Don Quixote

It is hard to know where to begin after reading the outbursts that Newt Gingrich has directed as of late toward the federal judiciary.  He may receive rousing applause for his tirades against the dictatorial courts in the United States.  But the sad truth is that his reckless attack on the courts promises to be one of the most destabilizing events imaginable.

Gingrich, who sports his own feeble academic credentials far too often for his own good, should remember that the one great concern that the Framers had about the judiciary was the institutional arrangements that were needed to serve its independence.  In staking out this ground, the Framers were not concerned with the institution of judicial review with respect to legislation.  Rather, they knew that the application of the law in any given case could be hopelessly compromised if the judges could be forced to account for their individual decisions in the halls of Congress.  It is for that reason that we should tremble at the prospect of a Congressional inquisition of judges whose decisions offend the sensibilities of the dominant political party.  Impeachment is available for gross derelictions of duty, but I doubt that it makes the slightest sense to bring those proceedings against the members of the Ninth Circuit who thought to take the words “under God” out of the Pledge of Allegiance.

One reason why the prolonged assault of Michael Newdow was so troublesome is that it sought consciously to upset the implicit status quo about the role of religion in public life.  Anyone who just looks at the text of the Establishment Clause—”Congress shall make no law respecting an establishment of religion” can see the danger in any rule that gives a special place for religion in public life. But at the same time, we have a long history of various ceremonial uses of religion in public life that starts, but surely does not end, with “God save this Honorable Court.”

This tension leads to real difficulties whenever anyone seeks to move the goal posts in either direction.  Back in 1990, Justice Antonin Scalia in Unemployment Division v. Smith took the strong position that the use of peyote by Native American Tribes in their religious ceremonies did not constitute a free exercise of religion that had to be protected by the Constitution.  Most people on both left and right understood the perils of trying to reconcile the Establishment Clause with the Free Exercise Clause, but thought that simple neutrality did not quite capture it, as Justice Scalia, mistakenly in my view, had held.  There were concerted political efforts to undo that decision that met with mixed success with the pasage of the Religious Freedom Restoration Act that was struck down, and the Religious Land use and Institutionalized Persons Act, which seems to have survived.  One can take all sides on this debate.  But no matter how high the decibel count, no one should think that hauling Justice Scalia before Congress is a way to tackle the problem.

Newdow’s challenge was real.  He is fond of saying that it would surely be unconstitutional for the Pledge of Allegiance to substitute (attention Rick Perry) “under Jesus” for “under God,” and he is surely right under current law.  But the lines here are hard to draw.  Indeed in my view the great danger in Newdow’s case was having any decision at all.  To defeat the challenge, the Court could have easily undone some of the sensible protections of the Establishment Clause.  To accept the challenge would have unleashed an uproar with major political consequences. 

The question was how to head this off.  There was a way.  Indeed, I had some small role to play in deflecting that challenge by authoring with Neal Katyal a brief on behalf of neither party that argued successfully that Newdow did not have standing to challenge the case because he was not the custodial parent of his daughter.  The argument had the virtue of being correct.  It won before the Court and headed off the immediate confrontation.   Many boo birds assured me that this short term diversion would only postpone the inevitable.  But cooler heads seem to have prevailed and the issue has not come up again.

There is an object lesson here.  Hot heads like Gingrich always let indignation get in the way of good judgment.  I have many beefs with the Supreme Court.  But the correct way to deal with them is to write briefs and articles, not to blow up an institution that has done so much more good for the health and stability than an agitated malcontent like Gingrich can recognize.  He is a fearsome debater, but a sloppy thinker.  It is a most unwelcome combination.  Would that he would only tilt at windmills.

  1. Tom Lindholtz
    With utmost respect, and I do respect and immensely enjoy your writings here, but your piece gives a good summary of the background, but doesn’t really get to the heart of the problem and offers no solution.  May I offer a problem statement and ask your solution?  I suggest that the Founders were an amazingly wise group who devised a near fool-proof structure and system of government.  But they have lately been failing because, as wise and educated men of common sense, they could not imagine the degree to which a morally relativistic society and educational system could produce the most ingenious of fools.  Our system was designed to work within a generally shared moral, philosophical, and ethical framework.  The presently existing framework is radically at odds with the framework they understood and that is required to make the system work.  This suggests that we have but two possible outcomes: 1) accept that the structure and/or system will fail, lament the loss, and become what every other nation is history has become, or 2) figure out the necessary changes to their system and structure.  What to you suggest?  How would you suggest we proceed as a nation?
  2. tabula rasa

    As a conservative and a lawyer, I am concerned about the kind of judicial activism represented by Roe v. Wade  (a decision whose reasoning is embarassingly bad).

    But that doesn’t mean we should blow up the system a la Mr. Gingrich.  One solution is, as Professor Epstein argues, win the arguments through superior reasoning.  Another is to win the political battles so that, as the Constitution provides, judges are appointed who will take a more restrained (and more constitutional) view of the limits of government.

  3. Steven Drexler

    I, too would like to hear an alternative solution (beyond “writing briefs and articles”). The white paper at Newt’s website seems pretty reasonable at first glance, contra his public pronouncements. Give Newt this: he knows how to start a conversation.

    Task number one in any restoration of balance between the three branches is for the President and Congress to reassert their roles as arbiters of the constitution. Criminal neglect of the type displayed by Nancy Pelosi (“ha, ha, ha…how silly to ask me the constitutional authority for PPACA”) and GW Bush (“I don’t think this campaign finance law is constitutional, but I’ll sign it anyway”) should be shamed and punished by the voters.

  4. Steven Drexler

     Newt’s white paper is here.

  5. Crow

    Today, there is a kind of stasis between the other branches and the court.

    Decisions come down that sometimes serve Progressive ends, sometimes conservative ones, but basically everybody abides by what the court decides and respects its authority to do so—even while, occasionally, arguing against it in public.

    Newt’s plan would upset this stasis. Unless we think there is never going to be a politician elected in the future who disagrees with our views, the practical effect of some of the worst facets of Newt’s plan would be to radically politicize EVERY court decision, and would create an environment in which alternative administrations (that is, Progressive and conservative presidents and congresses) string up judges with whom they disagree.

    The effect of this would not simply be to hold the court in check and diminish its supremacy. The effect would be to undermine the court’s ability to act objectively in cases before it, and ultimately threaten the court’s independence.

    To paraphrase another Madisonian quip of which the good Prof. Newt is no doubt aware, it could never be more truly said of this remedy than that it was worse than the disease.

  6. ultra vires

    Professor Epstein, not to detract from the main issue in this post – Gingrich’s dangerous disregard for judicial independence – but why would you argue against standing for Newdow? From your comments about the standing doctrine when you and Yoo discussed the Arizona Christian Schools Tuition Org. case last term, and in your articles on how standing should be interpreted to allow more challenges, how do you justify using the standing doctrine to thwart constitutional clarity?

  7. Conservative Episcopalian
    Steven Drexler:  Newt’s white paper is here. · Dec 30 at 1:26pm

    After reading the white paper, I agree more with Gingrich than I do Epstein. Epstein’s premise seems to be that there can be no criticism of judges because to do so would have a chilling effect on judicial independence.  I think the real problem is, as Gingrich points out, the judges have become de facto rulers. Their decisions, trump everything else and we are try to figure out how to work with the cultural implications and damage of their decisions.

    It is well known that the left, who cannot get their agenda through by virtue of the ballot box, use the courts. Then, when the courts rule in their favor, they tell us that the courts cannot be overturned or ignored, impeachment is out of the question for terrible decisions, and that the only way to make any adjustment is to pass constitutional amendments.

    The more instantaneous court decision, which makes sweeping and rapid societal changes without benefit of broad public support, leaves the scholars with reasons for conferences and paper writing, while the rest of us just shake our heads in disbelief.  

  8. Tom Lindholtz

    Another common sense violation is Kelo.  I suspect the Founders rolled over in their graves at that one.  Ultimately the Court and the courts are in the same position as any other “industry”: find a way to regulate yourselves according to decency and common sense, or someone else will do it for you.  So, if you don’t like Gingrich’s approach, you need a better solution imposed from within.

  9. Astonishing
    Richard Epstein

    . . . no one should think that hauling Justice Scalia before Congress is a way to tackle the problem.

    Lawyers like to stick to pertinent facts. That’s half their business, you know, figuring out which facts matter and which facts don’t matter, so they can safely ignore the facts they don’t like.

    So how about this fact:

    Most ordinary folks, not members of any particular mob, are offended by what they perceive as the arrogant over-reaching of lawyers and judges.

    Could it be ordinary folks–bless their simple little minds–just don’t understand how much gymnastic jurisprudential wonderfulness today’s lawyers, judges, and law profs contribute to society, in exchange for their $500/hr or $2000/hr?

    Or could it be lawyers and judges really have become, not Tocqueville’s natural aristocracy, but an arrogant and over-reaching class, with a bloated notion of its role in a healthy polity?

    Yes, the vision of hauling poor old men here, there, and everywhere terrifies . . .

    . . . yet time was when a mind no less than John Roberts thought court-stipping a grand idea. Perhaps Scalia might wish to haul himself to the hill to explain why not.

  10. David Williamson

    I think there is a document somewhere (I have seen it) that refers to “we the people” — I don’t recall mention of “we the judiciary” — I think that is Newt’s point.

    But Mark Levin has explained it much better.

  11. liberal jim

    Lawyers!  I guess name calling now passes for legal argument.  Newt’s white paper outlines his views.  It is to bad Epstein does no even attempt to address them. 

  12. Astonishing
    liberal jim: Lawyers!  I guess name calling now passes for legal argument.  Newt’s white paper outlines his views.  It is too bad Epstein does not even attempt to address them. 

    Yes, Epstien does resort to some dramatic rhetoric and a bit of name-calling.

    He starts with an over-the-top warning that  Newt’s “reckless attack on the courts promises to be one of the most destabilizing events imaginable.” (And here we were all worried about the mullahs gettin’ da bomb!) He attacks Newt’s argument by insulting his “feeble academic credentials.” And he disposes of Newt’s argument by calling him a “hot head,” an “aggitated malcontent,” and a “sloppy thinker” (the evidence offered for the foregoing being that Epstein disagrees with Newt) who would rather ”blow up” the Supreme Court than bury it under paper.

  13. Xennady

    With all due respect the mild and gentle reproach Gingrich leveled against the judiciary pales in comparison to the damage that institution has done to fabric of American society and governance via an endless string of terrible decisions.

    As I write, of course, we’re waiting to discover if our robed masters will allow the government to force us to buy health insurance. I shudder to consider what bureaucratic depredations will follow from that decision, given the endless depredations that sprang from earlier judicial mistakes.

    Someone once wrote that every system has within it the seeds of its own destruction, and by their endless overreach the courts have enabled the vast and disastrous expansion of the government in Washington that may result in the end of the Republic.

    We’re many decades down a wrong path that ends in tyranny or revolution, and I’m glad Gingrich at least notices that.

  14. R. Craigen

    I defer to your knowledge of constitutional law, Richard.  Brilliant as usual. But I think you’re projecting shallow stereotypes on both Gingrich and Perry in this piece. Has Perry openly advocated replacing “under God” with “under Jesus”? Are Gingrich’s public sound bytes adequate proxies for his detailed white paper arguments? Being quite ignorant of the finer issues of Law here (and, being a non-American, not terribly inclined to stay up late to master them), I think Gingrich’s position, on the coarsest and least technical level, is nearly unassailable: Judges are not above the law, and the judiciary is not supreme over the other two seats of power. Indeed, being unelected, they are the least of the three relative to the fundamental principle of rule by the people. If Gingrich’s solution is improper in its specifics I can’t see how it can be wrong in its basic thrust. I note that although he places the judiciary in the weakest of three positions, he also affords judiciary + one other house sufficient authority to overrule the third. Seems his position is more balanced (if not more nuanced) than the criticisms being leveled against it.

  15. Astonishing
    Steven Drexler:

     . . . Task number one in any restoration of balance between the three branches is for the President and Congress to reassert their roles as arbiters of the constitution. Criminal neglect of the type displayed by. . .  GW Bush (“I don’t think this campaign finance law is constitutional, but I’ll sign it anyway”) should be shamed and punished by the voters.

    Right on!

    Of everything Dubya did, nothing infuriated me more than his not vetoing McCainFeingold, while saying he thought it was probably unconstitutional, but tossing the potato to the judiciary, with the stated expectation that the Supreme Court would fix things.

    So the Court hesitatingly embarked upon a still-ongoing decade-long multi-part fixing process.

    One might ask whether “hesitatingly” is to the Court’s credit, for excercising restraint, or whether the Court should have cut down the whole of McCainFeingold at once. A court appears “restrained” when it only whittles a little on piece of legislation, rather than destroying it whole. But if the court whittles, then sets the work aside, then picks it up later to whittle some more, you wonder whether the court has given itself a creative political power contrary to judicial power.

  16. DocJay

    A court with creative political power is a dangerous thing indeed. I greatly fear a 5-4 or daresay a 6-3 Obama appointed activist supreme court.

  17. James Of England
    Astonishing

    Richard Epstein

    . . . no one should think that hauling Justice Scalia before Congress is a way to tackle the problem.

    Lawyers like to stick to pertinent facts. That’s half their business, you know, figuring out which facts matter and which facts don’t matter, so they can safely ignore the facts they don’t like.

    So how about this fact:

    Most ordinary folks, not members of any particular mob, are offended by what they perceive as the arrogant over-reaching of lawyers and judges.

    It’s true that there are lots of bad decisions; that doesn’t mean we should demolish the system. Congress is even more unpopular, but we shouldn’t rock that boat, either (elect new guys, sure, but we I don’t think anyone is talking about radically dis-empowering them, except possibly through judicial enforcement of federalism).

    The Court over the past decade has passed relatively few decisions taking us to the left/ activist side, and a good number reinstating conservative supported rights (most notably campaign finance and guns). Politicizing the system will get rid of Citizens United, but will not get rid of Roe. They bully better than we do.

  18. The Cloaked Gaijin
    Xennady: With all due respect the mild and gentle reproach Gingrich leveled against the judiciary pales in comparison to the damage that institution has done to fabric of American society and governance via an endless string of terrible decisions. · Dec 30 at 7:25pm

    Interesting quote.

    I tried to listen to your podcast, but after you called former Speaker Gingrich a fool and a madman, I decided to turn it off.

    Would a conservative Ricochet podcaster ever call President Obama a fool or madman?  No, of course not, we only reserve those words to assault our own guys.

  19. Klaatu

    This post surprises me because I really am a great fan of Prof. Epstein but this is beneath him.  The legal elite seems to be circling the wagons to defend their turf and the arguments they are making simply do not seem to hold up under examination.

    Prof Epstein’s claims that the founders were greatly concerned with maintaining judicial independence yet he does not explain why the courts’ jurisdiction is subject to “such Exceptions, and under such Regulations as the Congress shall make.”

    He then goes on to state that impeachment is an option for gross derelictions of duty but the constitutional standard for a judge remaining in office is upon good behavior.  Surely there is a lot of daylight between good behavior and a gross dereliction of duty.

    The Judiciary is due no more deference from Congress than is the Executive (I would even argue they are due less).  Executive branch officials come before congressional committees on a regular basis, I have yet to hear a reasonable explanation why it is unacceptable for members of the Judiciary to do likewise.

  20. Astonishing
    James Of England

    Astonishing

    Richard Epstein

    . . . no one should think that hauling Justice Scalia before Congress is a way to tackle the problem.

    . . .

    Most ordinary folks, not members of any particular mob, are offended by what they perceive as the arrogant over-reaching of lawyers and judges.

    It’s true that there are lots of bad decisions; that doesn’t mean we should demolish the system.  . . .

     . . . Politicizing the system  . . . .

    Who said anything about demolishing the system? That’s your terminology.

    Instead, what’s being recommended is that Congress, operating within our constitutional system, consider exercising some of its constitutional power, such as the power under the Artcile III, Section 2, exceptions clause, to restrain courts that won’t restrain themselves.

    As to your suggestion that such action would risk “politicizing” the federal judiciary . . . it’s been several days since I first read that, but it still makes me chuckle . . .  like worrying about corrupting morals in a bordello.

    Wrangles between the legislative and judicial are healthy. Whether he himself recognizes it or not, Epstein’s sentiments must be understood as those of a creature of the judicial branch . . . similarly, Newt’s must be understood as those of a legislative animal.